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2012(1) CPR 106 (NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,
NEW DELHI
Anupam Dasgupta, Presiding Member
B. Srinivasa Rao —Petitioner
versus
The Managing Director, TAFE ACCESS Limited & Anr. —Respondents
Revision Petition No. 2833 of 2011
Decided on 4.11.2011
Counsel for the Parties:
For the Petitioner:Mr. Kashi Vishweshwar, Advocate.
IMPORTANT POINT
Entire car cannot be replaced for having defective AC.
Headnote:(i) Consumer Protection Act, 1986—Sections 15, 17, 19 and 21—Automobile—Defect in AC of car—Complaint dismissed by Fora below—District Forum held that air conditioner fitted in complainant’s car did not have any manufacturing defect nor was complainant entitled to replacement of car merely because air conditioner was alleged to be defective—OPs did everything possible to resolve problems of air conditioning in car—Even if it was accepted that AC of car suffered from manufacturing defect, that by itself could not constitute a valid ground for seeking replacement of entire car or compensation of as high an amount as Rs. 19 lakhs— Revision petition dismissed subject to petitioner depositing cost of Rs.5,000. (Paras 2 , 3 , 6 and 7)
(ii) Consumer Protection Act, 1986—Sections 17, 22(2) and 22A—Review—It is only under sections 22 (2) and 22A of that National Commission has power to review an order made by it or reconsider and recall an ex parte order—There is no comparable provision under section 17 defining jurisdiction of State Commission—Action of complainant/petitioner in seeking restoration of his appeal by filing a miscellaneous application before State Commission which, on an earlier date, had already dismissed the appeal for non-prosecution, was misconceived. (Para 5)
Anupam Dasgupta, Presiding Member—This revision petition challenges the order dated 27.06.2011 passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (in short, ‘the State Commission’) in MA no. 46 of 2011 in FA no. 3426 of 2010. By this order, the State Commission dismissed the miscellaneous application filed by the petitioner herein by observing as under:
“6. Admittedly the appeal no. 3426 of 2010 was again posted for hearing on admission on 17.02.2011. Appellant did not make any representation. Though sufficient and reasonable opportunity was given to the appellant and advocate earlier, they did not represent their case. On 17.02.2011 also they failed to appear. Hence, appeal came to be dismissed for non-prosecution.
7. Then Miscellaneous Petition no. 21 of 2011 was filed on 25.02.2011. Thereafter also, there is no proper representation. The earlier advocate on record Sri. Nagaraj N. Naidu did not represent. Then it appears on the basis of ‘No Objection’, present advocate took the vakalath on 20.05.2011. At that time, it was informed him that the case is posed on 25.05.2011. He was present in the Commission on that day, but the Miscellaneous Petition no. 21 of 2011 was not called out. On enquiry he came to know that Miscellaneous Petition was dismissed on 24.05.2011 itself. What is the basis for this petitioner and the Advocate on record to say that Sri Nagaraj N. Naidu, Advocate informed him the date of hearing on 25.05.2011 is not known. The affidavit of the said Advocate is not filed. Under the circumstances, we don’t find any genuineness in the contention of the petitioner at this stage.
8. When the appeal was dismissed for the first time, the appellant would have been more cautious, but he was not regular. His absence does not appears to be bonafide and reasonable. The petitioner has not made out substantial grounds and reasons that his absence was reasonable. This present Miscellaneous Petition is a second Miscellaneous Petition wherein it is prayed to restore the appeal dismissed on 29.07.2010. It is Miscellaneous Petition to the Miscellaneous Petition. Under the circumstances, we don’t find any genuine grounds to allow this Miscellaneous Petition. Accordingly, we answer point no.1 in negative and process to pass the following:
Miscellaneous petition is dismissed.”
Aggrieved applicant/complainant has filed this revision petition.
2. The applicant was the complainant before the IV Additional District Consumer Disputes Redressal Forum, Bangalore (in short, ‘the District Forum’) and alleged that the air conditioner fitted with the Skoda Laura Car that he bought from the respondent/opposite party – OP 1 on 05.01.2007 did not work properly ever since the date of purchase. The problem in the defective AC could not be fully resolved even after 2 ½ years since the purchase of the car. Alleging defective product and deficiency in service, the complainant prayed for replacement of his car or, in the alternative, compensation of Rs.19 lakh and costs.
3. On consideration of the pleadings, evidence and documents brought on record by the parties, the District Forum held that the air conditioner fitted in the complainant’s car did not have any manufacturing defect nor was the complainant entitled to replacement of the car merely because the air conditioner was alleged to be defective. Accordingly, the District Forum dismissed the complaint.
4. Aggrieved by the order of the District Forum, the complainant approached the State Commission. The State Commission dismissed the appeal on 29.07.2010 for non-prosecution. It appears that the same appeal was again posted for admission hearing on 17.02.2011. On that date too, there was no representation on behalf of the appellant/complainant and the appeal was once again dismissed for non-prosecution. Though a miscellaneous petition for restoration was filed on 25.02.2011, there was once again no proper representation on behalf of the appellant/complainant. The A
